Groups to sue BNSF, others over coal in waterways

SEATTLE (AP) - Several conservation groups on Tuesday announced plans to sue Burlington Northern Santa Fe Railway and several top U.S. coal producers, claiming they spill coal into Washington state waterways in violation of federal law.

The Sierra Club and other groups allege the companies discharge coal, coal chunks, coal dust and other pollutants into state waters when Rocky Mountain coal carried in open-rail cars across the state get blown, shaken or fall off.

Many of those rail lines run along rivers, lakes and streams, and the coal and other material end up in those waters, potentially harming aquatic life, ecosystems and people, according to the groups, which include Puget Soundkeeper Alliance, Columbia Riverkeepr, Friends of Columbia Gorge and RE Sources for Sustainable Communities.

"Coal is a toxic pollutant," containing mercury, arsenic and other metals, said Brett VandenHeuvel, executive director of the Columbia Riverkeeper, during a call with reporters Tuesday. "So we're taking this action today to stop the spilling of pollution into our rivers."

On Tuesday, they sent BNSF and Arch Coal, Peabody Energy, Cloud Peak Energy, Ambre Energy and other companies a 60-day notice of intent to sue, a step required before bringing a citizen lawsuit under the federal Clean Water Act.

"BNSF is committed to preventing coal dust from escaping while in transit," spokeswoman Courtney Wallace said in a statement, calling the action "the threat of a nuisance lawsuit without merit."

Wallace said BNSF has safely hauled coal in Washington for decades, and has not been aware of "a single coal dust complaint lodged with a state agency in the Northwest or with the railroad until the recent interest in coal export terminals."

Coal from the Powder River Basin of Wyoming and Montana currently travels by train through Washington to British Columbia, where it's exported to Asia. Coal is also shipped to Washington's only coal-fired power plant in Centralia. That plant, operated by TransAlta, is slated to shut down in 2025.

Several top U.S. coal producers are now seeking to ship millions of tons of coal through the Northwest to feed thirsty markets in Asia.

The U.S. Army Corps of Engineers is currently reviewing permits for three proposed coal-export terminals, including one at Boardman, Ore., and two in Washington at Longview and near Bellingham.

Wallace said new coal loading rules require shippers to take measures to address coal dust when they load the coal cars. Shippers must load the coal in a bread-loaf shape and put a seal on the top to prevent coal dust from flying off, though that rule is currently being challenged.

The group says the train and rail cars are point sources of pollution, and that the companies should have gotten a permit under federal law for such discharges. They fear that increased rail traffic, if the proposed port projects are built, will worsen the problem.

The conservation groups note in their letter that BNSF's testimony before the Surface Transportation Board in 2010 show that each rail car loses between 250 and 700 pounds of coal and coal dust each trip.

Cesia Kearns, a campaign representative with The Sierra Club, says the groups have tested some of the material collected in various waterways throughout Washington and are in the process of testing more. She declined immediately to say what those lab results revealed.

BNSF has not been contacted about the samples and aren't aware of third-party tests confirming that what was found is indeed coal, Wallace said.

Matt Ryan, a windsurfer who lives in Underwood along the Columbia River Gorge, said he has been showered by coal chunks and coal dust when trains roll by. "It seems pretty obvious that it comes off the coal trains. There are no covers on these cars and they're exposed to so much wind for such a long time."

It's unclear what the health or environmental impacts are from exposure to coal dust and contamination.

The issue has not been well-studied, said Eric de Place, a policy director with Sightline Institute, a Seattle think-tank, who spoke to reporters on the conference call. "Coal dust contamination and pollution is a classic example of something we don't understand might hurt us," he said.

Dr. Roger McClellan, a past chairman of the Environmental Protection Agency's clean air scientific advisory committee, said "the mere presence of coal by a railroad track or in the water is not a health hazard."

He said more scientific analysis would have to be completed to understand the risks, including knowing the particle size, whether it can be inhaled, the intensity of exposure and chemical composition.

VandenHeuvel said the intent of the notice to BNSF and coal companies is ultimately to get them "to stop discharging pollutants into the water way."